The Lucknow Bench of the Allahabad High Court has held that widowed daughters are entitled to compassionate appointments if dependent on their deceased parents while allowing a petition.
The Division bench of Justice Rajan Roy and Justice Om Prakash Shukla passed this order while hearing a petition filed by Punita Bhatt Alias Punita Dhawan.
By means of the petition, the petitioner has challenged the order dated 13.01.2023 passed by the Central Administrative Tribunal, Lucknow Bench, whereby Original Application filed by the petitioner claiming compassionate appointment on the basis of being widow daughter has been dismissed.
In addition, the petitioner is also challenging the direction/ instructions issued by the Assistant General Manager (Recruitment), Bharat Sanchar Nigam Limited, Telecom (East), UP Circle, Lucknow (respondent No 2) to the effect that the widow daughter of the deceased employee cannot claim compassionate appointment.
The facts of the case are that the petitioner is a widowed daughter. Her father, Om Prakash Bhakta, while working on the post of TOA (T.L) in the office of General Manager (Telecom), died in harness on 12.11.2011, leaving behind wife, four daughters including the petitioner and a son.
On 01.06.2016, the petitioner moved an application seeking appointment on compassionate ground. Along with the application, the petitioner had also submitted notary affidavits of her mother, brother and married sisters to the effect that if the petitioner is given appointment on compassionate ground, they will have no objection rather they have given their consent to give appointment to the petitioner.
According to the petitioner, she has also given a notary affidavit to the effect that she was married with Late Manish Dhawan who died on 27.07.2009 and after death of her husband, she was living with her father along with her minor son and further if she is given appointment on a suitable post, she will look after the heirs of her deceased father as per the best of her capability and further that she is Graduate and also has a Library Science Certificate.
Apparently, vide letter dated 13.10.2016, the Assistant General Manager (HR), Office of General Manager (Telecom), Allahabad intimated to the petitioner that as widowed daughter is not listed in the eligibility criteria of the guidelines circulated by its Circle Office, therefore, no action on her application for compassionate appointment is required to be taken.
Feeling aggrieved, the petitioner preferred an Original Application before the Tribunal. The Tribunal, after appreciating the claim of the petitioner as also appraising the guidelines/ schemes issued by the Bharat Sanchar Nigam Limited for compassionate appointment as well as judgment of the Court passed in Special Appeal has returned a finding that as per the guidelines, widowed daughter is not enumerated in the list of eligible persons and the Tribunal cannot enter into the shoes of the Executive in framing of rules and guidelines.
In this backdrop, the Tribunal has dismissed the original application vide judgment and order dated 13.01.2023, which has led to filing of the petition.
The Court observed that,
Having regard to the submissions advanced by the Counsel for the parties and going through the record available before the Court in the petition, what the Court finds is that the bone of contention between the parties is as to whether a “widow daughter” of a deceased employee is a ‘Dependent Family Member’ or not, so as to be eligible for appointment on compassionate ground. The point to be seen by this Court is as to whether a “widow daughter” falls under the definition of ‘Dependent Family Members’ or not as per the Scheme of the Compassionate Appointment.
Evidently, the Guidelines for Compassionate Appointment issued by the Government of India, Ministry of Personnel Public Grievance and Pension (DoPT) vide Office Memorandum dated 09.10.1998 states that the Scheme for Compassionate Appointment is applicable to a ‘Dependent Family Member.
Apparently, the respondents-BSNL relying on the meaning of ‘Dependent Family Member’ has denied compassionate appointment to the petitioner on the ground that “widow daughter” is not mentioned at point No.(c), which merely contains the word “daughter (including adopted daughter)”.
The prerequisites to be satisfied for being entitled for consideration for such appointment are that the applicant should be a family member and should be dependent upon the deceased employee. After these conditions are satisfied the economic or financial condition of the family, including the dependent, assumes significance, and is required to be assessed.
The Court further observed that,
In the facts of the case, it is not in dispute that the petitioner is the daughter of the deceased employee, however, she was married and became a widow prior to the death of her father, the deceased employee. It is this fact which is coming in the way of her consideration for compassionate appointment as, according to respondents a widowed daughter is not included in the guidelines dated 09.10.1998.
As per the Office Memo dated 09.10.1998 of Department of Personnel and Training, Government of India and the scheme for compassionate appointment appended thereto which has been adopted and is applicable in the opposite party corporation, the object of the scheme is to grant appointment on compassionate ground to a dependent family member of an employee dying-in-harness or who is retired on medical grounds, thereby leaving his family in penury and without any means of livelihood, to relieve the family of an employee from financial destitution and to help it to get over the emergency.
The word ‘daughter’ used in the scheme is not preceded by the word ‘unmarried’ just as the word ‘son’ used in the scheme is not preceded by the word ‘unmarried’. The absence of such prefix gives a reasonable basis to conclude that this definition does not exclude a ‘married daughter’, especially as the definition is an inclusive one, therefore, it has to be given an expansive meaning keeping in mind the object sought to be achieved.
Any distinction in this regard would be without any reasonable basis and without any link to the object sought to be achieved, therefore, it would be discriminatory and hit by Article 14 of the Constitution. Article 15(1) of the Constitution of India prohibits discrimination by the State against any citizen on grounds, inter alia, of sex. Likewise, Section 16(2) prohibits such discrimination on the grounds of sex in respect of any employment or office under the State.
Thus, the Court finds that it is clear as a cloudless sky that any action/ clauses of the policy which deprives a widowed daughter from a right of consideration for compassionate appointment if she was dependent upon her father, the deceased employee would run contrary to Article 14, 15, 16 read with 39A of the Constitution of India.
The Court held that,
In the light of decisions discussed hereinabove and the reasons given as aforesaid, we have no hesitation to hold that the words ‘daughter (including adopted daughter)’ occurring in Note-I of the Guidelines dated 09.10.1998 includes a married daughter, the only caveat is that such married daughter should be dependent upon her father/mother on the date of his/her death.
We are of the opinion that a ‘widowed daughter’ stands on a better footing than a married daughter as, prima facie with the loss of her husband, she also loses her source of livelihood unless of course in the facts of a given case it is found that she is herself employed or has other means of sustenance which are adequate to sustain her in which case she may not have been dependent upon her father, but, unless this is proved, it would be reasonable to draw an inference that she was dependent upon her father unless of course there is evidence to the contrary.
Consequently, the Court further held that a ‘widowed daughter’ would be covered in the definition of ‘daughter’ contained in Note-I of the Guidelines dated 09.10.1998 if she was dependent upon her deceased father or mother on the date of his/her death. The question of dependency is one of fact which is to be determined by the authorities. If such a widowed daughter was not dependent upon her father then she would not be entitled to compassionate appointment under the guidelines.
“For all the above said reasons, the respondent-BSNL could not have declined to consider the application of the petitioner for compassionate appointment merely because the petitioner was a widowed daughter on the date of death of her father,” the Court also observed while allowing the petition.
The Court has also gone through the judgment of Central Administrative Tribunal dated 13.01.2023 which is impugned herein and in view of the discussion already made, the Court found ourselves unable to agree with the decision given by it. In view of the reasons already given, the said judgment is not sustainable. It is, accordingly, quashed by the high court.
The Court directed the competent authority to consider the claim of the petitioner for compassionate appointment in accordance with the weightage point system prevalent and in doing so she shall be assigned points accordingly and her claim shall not be rejected on the ground that she was married or widowed daughter.